TaxTMI 
TaxTMI 
2021 (2) TMI 917
X X X X Extracts X X X X
X X X X Extracts X X X X
....017 (for short 'the CGST Act'). 2. As per the impugned order, the account has been frozen in view of Section 74 of the said CGST Act. Section 74 is reproduced herein below:- "74. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason of fraud or any wilful misstatement or suppression of facts. (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilised by reason of fraud, or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... basis of his own ascertainment of such tax or the tax as ascertained by the proper officer and inform the proper officer in writing of such payment. (6) The proper officer, on receipt of such information, shall not serve any notice under sub-section (1), in respect of the tax so paid or any penalty payable under the provisions of this Act or the rules made thereunder. (7) Where the proper officer is of the opinion that the amount paid under sub-section (5) falls short of the amount actually payable, he shall proceed to issue the notice as provided for in sub-section (1) in respect of such amount which falls short of the amount actually payable. (8) Where any person chargeable with tax under sub-section (1) pays t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rily deposited some amount, the notice would not be required and it would not be deemed that the proceedings under Section 74 are pending. 5. Learned counsel for the petitioner pointed out to sub-Section (7) and has argued that if the assertion of learned counsel for respondent No.1 is accepted then this sub-Sections would become otiose. 6. We find that sub-Section (7) clearly says that if the proper Officer comes to the conclusion that the amount voluntarily deposited by the assessee falls short of the amount actually payable, he shall proceed to issue the notice as provided under sub-Section (1). 7. Learned counsel for the petitioner has relied upon Para 5 of the judgment passed by the Single Bench of the Karnataka High Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gued that this offer was made because the petitioner was facing a situation where all its accounts were frozen and it had to remit payment on time. The request was made without prejudice to the rights of the petitioner. Consequently, this argument of the learned counsel for the respondent No.1 has to be rejected. 10. Resultantly, in the end we are left with the situation where till date no notice has been issued under sub-Section (1) of Section 74. To this effect, the learned counsel for the petitioner has relied upon the Division Bench judgment of this Court in the matter of Bindal Smelting Pvt. Ltd Vs. Addl. Dir. Gen. Directorate Gen. Of GST Intelligence, 2020 (34) G.S.T.L. 592 (P&H), wherein it was held as under:- "10. Applyi....